David Shellenbarger Jr. will continue to serve the 264-month prison term he was sentenced to in January 2012, despite a Michigan Court of Appeals ruling than mandated a change to one of the offense variables used to calculate his sentence.

The appeals court affirmed his conviction, but vacated his sentence and required re-sentencing by the Ionia County 8th Circuit Court.

Shellenbarger, 36, of Orleans, was re-sentenced by Chief Judge Suzanne Hoseth Kreeger Tuesday to the same 264-month term for an armed robbery he committed April 19, 2010, at M-21 Mobil in Ionia Township.

He appealed his conviction with the Court of Appeals, claiming the trial court abused its discretion when it did not grant Shellenbarger a new trial after he claimed juror prejudice after he appeared in restraints at his trial, that his counsel offered ineffective assistance, and that offense variables pertaining to crimes against a person and predatory conduct were incorrectly scored. Offense variables scores are used to determine sentencing guidelines.

The appeals court disagreed with all but the predatory conduct scoring. Shellenbarger was given 15 points for predatory conduct during the robbery.

"He waited until people left the store, and there was an older woman working," Ionia County Prosecutor Ron Schafer said, adding that a witness saw him drive in on a quad, dressed in black with a mask on, and then wait until the employee was alone. "We said that was predatory conduct. The Court of Appeals disagreed with that. They said it was nothing more than one of the steps he took to conceal his identify."

With the 15 points for predatory conduct, the minimum guideline range for Shellenbarger's sentence was 135 to 450 months. Without the 15 points, the range is from 126 to 420.

"(Kreeger) picked 264 (in 2012), which is right in the middle of both ranges," Schafer said.

Shellenbarger's attorney, Michael Faraone said, although he didn't expect a "dramatic change" in the sentence as a result of the Court of Appeals ruling, the minimum term could be lowered.

"He has a terrible record," Faraone said. "But there does not appear to be assaultive behavior in his adult record. There was the armed robbery, however nobody was hurt during that."

Faraone said that, while his client has been in prison, he has completed vocational classes and received a certificate in home building.

Schafer noted that the original sentence was lower than the prosecution had asked for.

"The defendant has earned his sentenced," he said. "Mr. Shellenbarger has a lengthy, lengthy criminal record – 64 pages. He has been a scourge of the citizens of this county and this circuit. With a certificate in the building trades, he'll probably be a better B&E man when he gets out. How much money and time are we going to waste on Mr. Shellenbarger? I don't believe any change is necessary."

Page 2 of 2 - "You were on parole (when committing the armed robbery) and have a significant criminal record in this community," Kreeger told Shellenbarger. "With respect for the ruling of the Court of Appeals, the original sentence was within the modified range, so I am re-sentencing you to the original sentence."